Use of Wikimedia Commons museum painting image for book cover

Wiki Commons images are said to be in the public domain and could presumably be used for a book cover (assuming the work of art is itself in the public domain). But the museum where the painting is hanging actually sells the right to reproduce them - for instance the Louvre charges fees to reproduce its paintings. Yet I could use instead a Wiki Commons image of it for free? How does that work?

Comments

Excellent question. In theory, the museum is charging an access fee, since the images themselves will have long since passed the Life+70 or Life+90 copyright limits used by most countries. From a strictly copyright perspective, the Mona Lisa is in the public domain. If you were to take a photo of it, or to paint an exact duplicate (so long as you signed your own name), you would be within copyright law, imho.

I am not a lawyer; this is not advice.

But suppose that this were not true, and DaVinci charged me $1000 to take a photo of the Mona Lisa. My work, the photograph, would be a derivative work, and having paid the royalty, I could then do with it as I wished, including permitting others to photograph my photograph. I could even, in theory, upload my digitized photo to the internet and place it into the public domain through WikiCommons, GPL, or Copyleft. I could not permit others to go to the Louvre and take a photo of the Mona Lisa, but I could allow them to photograph my photo.

An analogy would be if I were to write a book containing a lengthy quote from _Moldovan Starlight_ by Paolo Gituean (A fictitious book and author). I would need to pay a royalty to Gituean for the citation, but having done so, I could then sell my book in any of the following forms: As a serialized version (first, second, etc. North American serial rights), as a book (First North American Hardcover Rights, second ... Third..., first paperback, second, etc...), as a screenplay (first NA movie rights, ...) and so forth. Gituean would have been adequately compensated the one and only time I paid him.

Returning to the immediate question: I suspect that the Louvre is charging for access and the cooperation of the museum, as opposed to any actual copyright license. I doubt that they could sue if you were to take a photo of the Mona Lisa by stealth, without their permission.

In a nutshell it says the site takes no responsibility for the legality of any image, because anyone can upload them, the site does not check if the uploader has the right to. Perhaps think Napster for images and text ...

Few galleries will allow cameras in them. Often for two reasons. Flash may damage the art and they make money from selling prints and postcards.

All interesting and true. But suppose you want to use a WikiCommons Mona Lisa image for the cover of your book. Could you do it freely and if so what credit would you give?

Not a lawyer, Not Advice; Not my circus; Not my monkeys.

I might note the photographer's name if it is known; otherwise I would simply note on the copyright page, "Front Cover: Leonardo DaVinci's Mona Lisa (Public Domain)." The WikiCommons page specifically states that the work is in the public domain, so you could reasonably rely upon this under the DMCA rules in the US.

HOWEVER, if someone is able to demonstrate ownership of the photo (i.e., comes to you and states, "I am the photographer who made this image of the Mona Lisa, as demonstrated by my steganographic signature shown here..." Then you would be in an innocent infringement, and would have to stop using the image, but also could not be held responsible for infringement. The fact that you did not know, and could not reasonably have known, that someone owned that photograph, frees you from legal liability. Provided you stop using it.

So the short answer is "Yes," and "Credit to Leonardo."

As an aside, it is extremely difficult to show that one photograph of a given subject is materially different from another photo taken of the same subject at the same angle. For example, I was once at someone's house and remarked on the large color photograph of a waterfall in Yosemite that hung above the mantel. That same waterfall had been on the cover of my High School yearbook one year.

"No," protested the hostess. "My father took that photo, and that is the only print he ever made from it."

Well, clearly, then, the photo on the yearbook was not THAT photo. But it was so like it that it could plausibly have been made from the same negative, because it was the same subject at the same angle from the same vantage point with the same composition. And I am certain that hundreds of visitors to Yosemite make nearly identical images every year.

So the odds of a photographer discovering your book and being able to demonstrate that it was his photo of the Mona Lisa, and not the photo of any of ten thousand other photographers, is vanishingly small. If he did, however, you would be obligated to remove it as soon as it was demonstrated to be his.

Skoob_Ym is right. One thing to keep in mind is the source of the photo itself. An artwork might be in the public domain but a photographer could copyright his photo of it...pretty much in the same way that an orchestra could copyright its recording of a Beethoven piece. In your case, I would simply be very careful to credit the image to the source you used: Wikipedia Commons. That being said, Kevin is correct about Wikipedia Commons' disclaimer. I once found one of my illustrations on the site and had to have it removed.

Still...I think that Skoob's last paragraph is probably a pretty safe bet: go ahead and use the image. You are doing so in good faith and after taking due diligence regarding the image's provenance.

This is what the first site says >> "All photos published on Unsplash can be used for free. You can use them for commercial and noncommercial purposes. You do not need to ask permission from or provide credit to the photographer or Unsplash, although it is appreciated when possible. More precisely, Unsplash grants you an irrevocable, nonexclusive copyright license to download, copy, modify, distribute, perform, and use photos from Unsplash for free, including for commercial purposes, without permission from or attributing the photographer or Unsplash. This license does not include the right to compile photos from Unsplash to replicate a similar or competing service"

The second site says more or less the same thing. I see no evidence that the sites check that those who upload the images have any right to. Also note that they are not all free. Many are samples from professional photographers promoting their wares.

The problem is with such images is that anyone can use them, when what you actually want is something unique. And to be honest, many of the images you could take yourself on a decent smartphone.

The problem is with such images is that anyone can use them, when what you actually want is something unique. And to be honest, many of the images you could take yourself on a decent smartphone.

You hit the nail on the head regarding the main problem with using stock images: the fact that they can (and probably do) appear on dozens of other books.

I have never used stock photos (the occasional exception being images from the Library of Congress and a few other government agencies, and even then never for an entire cover). I keep a collection here of thousands of photos that I have taken, many for the express purpose for later use in artwork. I have a camera with me constantly, so that I can add anything interesting I may find. This might range from textures and landscapes to buildings and clouds. I also have a very large library of vintage books and magazines that I have mined for images. All of this material I keep in dozens of files sorted by subject. Whenever I need a figure in one of my covers, I either find a suitable photo that I had taken in the past or I recruit a friend or member of my family to model. I have even built models and arranged tabletop setups to achieve details I needed. The goal is to A. (of course) avoid images that are going to be overly familiar and B. get exactly what I want and not be constrained by the limitations of found imagery.